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Tuesday, July 5, 2011

The hand of the grave: constitutional amendments

[M]ost states can't do what New York did. Their legislatures can't legalize gay marriage, because their voters have passed ballot measures that prohibit it under their state constitutions. The ballot measures were enacted years ago, when gay marriage was unpopular. Now many of the old voters who opposed same-sex marriage are being replaced by young voters who support it. But the old electorate, through its constitutional amendments, has handcuffed the new electorate. The living are being ruled by the dead....

[I]n California, Virginia, or the other 27 states where constitutional amendments forbid gay marriage... legislators are bound not by today's constituents but by yesterday's voters. Many of those voters aren't even around anymore. The strongest support for banning gay marriage, nationally and in nearly every state that has faced a referendum, has come from old people. In Arizona, California, Oregon, and Wisconsin, voters below the age of 30 opposed ballot measures to ban gay marriage but were outvoted by their elders. In Michigan, Ohio, and Virginia, young voters split almost evenly. Today, you can see the same pattern in Ohio, Oregon, South Dakota, and other state and national polls. Gay marriage is becoming a majority position in part because people are changing their minds, and in part because a generation that's OK with homosexuality is replacing a generation that wasn't.

The question now is whether the new majority will get its way. To undo the constitutional amendments of the past decade, supporters of gay marriage will have to pass ballot measures in those states. In Nevada, they'll have to do it twice. Passing ballot measures is hard. People tend to vote against them out of suspicion and fear, particularly when you're messing with the constitution.

From a conservative standpoint, that's how the system should work. The point of amending state constitutions while the polls were still against gay marriage was to protect the culture of the traditional family from the onslaught of normalized homosexuality.

But if the culture of the traditional family as enshrined in these constitutions is wrong—if marriage is moral and healthy regardless of sexual orientation—then the walls erected by those ballot measures are a prison inflicted by the old on the young. And that legacy, unlike marriage, is a bond that death alone can't break.